Commonly Raised Defenses to Petit Larceny

By: Don Murray, Criminal Defense Lawyer with Shalley and Murray

Note: By far the vast majority of petit larceny cases in New York City arise in the context of alleged thefts from stores and would therefore be considered “shoplifting”. This page will concern itself primarily with shoplifting for that reason. Be aware, however, that petit larceny is not just shoplifting. Stealing any property from anyone could be petit larceny.

“I never left the store.”

Many people who have been accused of petit larceny raise the issue of “leaving the store." While the issue of “leaving the store” is relevant in a petit larceny case, it is not a requirement of the offense. To understand why this is requires a little bit of a deeper understanding of petit larceny.

In order to be guilty of petit larceny, at least two things must be true. First, you must take some property that does not belong to you. Second, you must also have the intent to steal it.

A store presents an interesting situation in this area, because when we wander the aisles of the store, there are all sorts of things that don’t (yet) belong to us, but that we take into our possession. For example, if I am in a store and I take a tube of toothpaste off the shelf and put it into my cart, I have certainly taken it. It also does not (yet) belong to me.

The reason I am not guilty of shoplifting at that very moment where I put that tube of toothpaste into my cart has nothing to do with my still being inside the store. It has everything to do with my intent - with the secret operation of my mind.

My intent when I take that tube of toothpaste off the shelf is to buy it from the store, not to steal it. That is why I am not guilty of petit larceny right there and then.

Now of course my intent is really a matter of the secret operation of my mind. The only person who truly knows my intent is me and no machine in the world can look into my mind and reveal my intent. That means that direct proof of my intent can never be shown.

Does this mean that I have unveiled some secret loophole in the law that means that nobody can ever be successfully prosecuted for petit larceny because there is no such thing as direct proof of intent?

Of course not. The laws regarding the meaning of theft and intent were developed over the last hundreds of years, if not thousands. People have been prosecuted and convicted of petit larceny since time immemorial. But how can this be if direct evidence of a person’s intent is impossible to prove?

Easy.

Every day, we all make judgments about other people’s intent based on things we can measure - things they say that we hear, things they do that we see. The law allows us to take note of things people say and things they do and draw conclusions about their intent.

For example, in the context of my toothpaste buying, I said that I took the toothpaste off the shelf and put it into my shopping cart. The fact that I put the toothpaste in my shopping cart is a fact that is capable of proof. Someone could see me do that and be able to testify in court that he saw me do it. A videotape system could capture me doing that and create a recording that could be admitted at a trial.

Once this fact is accepted, my criminal defense lawyer could make the powerful argument that the fact that I put the item in my shopping cart is powerful evidence of my intent to buy the toothpaste instead of steal it. The shopping cart is something provided by the store for people to use to collect items they intend to buy. The cart is open to inspection for all to see, including the store employees.

Of course, it is POSSIBLE that my intent was in fact to do steal it in some way. And the fact that I touched it and put it into my shopping cart makes the proof against me stronger -- just not very much stronger. The proof is not much stronger because the fact that I put it in the shopping cart is probably stronger evidence that my intent was to buy it. If that is the only proof the Government has against me - that I put the toothpaste into my shopping cart - the Government would probably lose a trial. I don’t believe very many people would think that would be proof beyond a reasonable doubt.

In order to show enough proof of my intent to steal the toothpaste, the Government is going to need something more - some fact that more conclusively shows what my intentions were as to that toothpaste.

Perhaps the classic fact that many stores rely on is leaving the store without paying for it. A more powerful fact to show my intent was to steal than leaving the store with it and not paying for it is hard to imagine. If my intention were to buy the toothpaste, why didn’t I buy it? If I changed my mind about buying it, why didn’t I put it back?

Of course there are explanations for leaving the store without paying for an item. And if the store chooses not to accept that explanation and calls the police, I will be free to make that explanation a part of my defense to the charge of petit larceny. But the key here to understanding this is to understand that the Government is entitled to draw its own conclusions regarding the facts.

The Government, if it chooses to arrest and prosecute me for petit larceny will take the position that I left the store with the toothpaste without paying for it and that shows that my intent was to steal it.

On the other hand, if it is true, I might concede that I left without paying for the toothpaste but explain that I didn’t notice that it was still in my cart when other items that I bought were piled inside it. I could concede that I left the store with the item but explain my own intent at the time.

A jury could believe my explanation or could reject my explanation.

If you think about it then, you can see that there could be signals that my intention was to steal instead of buy that I could give long before I ever even attempted to leave the store. For example, suppose instead of putting the toothpaste into my cart, I didn’t even have a cart. Suppose I put the toothpaste into a secret compartment in a bulky winter jacket I was wearing that was lined with some material that was designed to evade the security detection of the store.

If a security guard watched me do this, then it is quite reasonable to expect that the security guard might not bother to wait for me to try to leave the store before stopping me. The facts that I am wearing a jacket with a secret compartment designed to thwart store security and the fact that I put the toothpaste into that compartment instead of into a cart combine to make a powerful argument that my intent was to steal.

Now it is possible that the store security guard who saw me put the toothpaste into my secret compartment could choose to follow me out the store and add one additional fact against me (that I left the store without paying for it). It would certainly make the case against me that much stronger. But it is also possible that the security guard could decide that seeing me put the toothpaste into a secret compartment in my jacket was enough and stop me right there and then.

Therefore, leaving the store is not a requirement by any means. It certainly makes the case against a person accused of petit larceny stronger, but it is not legally necessary to prove the case. Each case will turn on its own facts and the conclusions that can reasonably be drawn from them.

“I had the money to pay for the item”

People accused of petit larceny in many instances actually have the ability to pay for the item in question, either with sufficient cash in hand, or with a credit card. This is not necessarily a defense to petit larceny. An argument could be made that the conclusion to be drawn from the fact that a person had sufficient cash to pay for the item is that his intent was not to steal it. If the facts support it, perhaps there was some sort of distraction with respect to the item in question that might make it reasonable to conclude that if the person had not been distracted, he would have paid for it.

On the other hand, the simple fact that the person had the money to pay for the item in question is not, in and of itself conclusive proof that the intent was not to steal. The Government could easily accept that the accused person had the money to pay but argue that despite having the money, the person chose to steal instead. The world is full of examples of people with plenty of money who steal things.

This simply illustrates that there are frequently two possible conclusions to be drawn from the same fact or set of facts.

This is extremely frustrating for people accused of petit larceny who know that their intent was not to steal. The temptation is to fix on what you know of your own innocent intent and not want to accept that the rest of the world is not privileged to see inside your mind. The rest of the world is only left with the facts that it can see or hear. These facts are subject to different interpretations.

This does not mean that it is impossible to convince a judge or a jury to draw not guilty conclusions instead of guilty conclusions. Far from it. It simply means that the resolution of your case may not be as simple as “just tell the prosecutor that I didn’t do it”.

If you are in a position in which you are accused wrongfully of petit larceny, you must accept that the Government may never agree with you and that your only choices will be to pursue your day in court at a trial, or accept some settlement of your case. The Government is not likely ever to be so overwhelmed by the quality of your case that they will simply dismiss it. If settlement is not what you desire, then you will need to send your case to trial. There is nothing wrong with this. You will consult with a criminal defense lawyer, who will guide you through the process and help you convince the jury that the proof against you is not beyond a reasonable doubt.

“I was simply with another person and they arrested me too.”

Another common situation in petit larceny defense arises when more than one person is arrested for stealing the same items. Frequently, one person who is arrested will be found to have the items in question in his possession and the other person will not have any stolen property in his or her possession.

The question then comes up as to “How can I be arrested when I didn’t have any of the property on me?”

The answer is that in a situation like this the Government’s theory is that two (or more) people were working together toward the common goal of stealing the items. This principle of working together, or “acting in concert” in legalspeak says that when two or more people work together toward committing a crime, that both are equally guilty of the crime regardless of the level of their role. In other words, if you have even the smallest role in committing a crime, and even if the other person does 99% of the work, you are considered 100% guilty.

Here’s how it might work in a petit larceny case. Suppose my wife and I enter a store. Before we go in we decide that our goal is to steal a tube of toothpaste for us to use at home. We go in to the store together and my wife’s job is to keep a lookout for store security while I find the toothpaste aisle, take the toothpaste tube off the shelf, put the the toothpaste into my special secret compartment of my jacket and walk out of the store. Assuming my wife doesn’t do a good job, store security watches me and stops my wife and I in the parking lot as we get in our car.

In this case, my wife would not have the toothpaste in her possession when she is stopped. Neither would she have so much as touched the toothpaste inside the store. All she did was try to keep an eye out for the store security. But she had a role. She had a job to do. Her job was to do something that advanced the cause of our goal of committing the crime of petit larceny. Therefore, the Government could prosecute both us on the theory that we “acted in concert”. If the Government were able to prove that we had a plan and that we were working together, my wife could be convicted just the same as me.

Now truth be told, it might be a little more difficult for the Government to prove that my wife was working with me than it would be to prove that I committed petit larceny. The Government’s case against my wife could be better if she or I admitted to the police that we had a plan. The Government’s case against my wife could be better if she were caught on videotape nervously looking up and down the aisles and communicating with me by hand gestures from across the store. The Government’s case against my wife could be not so good if she were not with me at all but simply waited in another aisle and there were no communication between us.

Once again, the fact that the property was found on another person, while potentially very good for anyone else arrested, is not a magic bullet. The Government frequently will arrest the person who has the property right along with anyone else who entered the store with the person, even if they don’t really have much to go on in terms of evidence of acting together.

Perhaps by arresting the companion in ambiguous circumstances, the Government believes the “real” offender will be more likely to confess in hopes that his/her spouse or friend will be released. (Not a good bet, by the way).

Don Murray, founding partner of Shalley and Murray has been practicing criminal defense exclusively for the last 27 years. He has handled countless petit larceny cases and therefore has likely handled many cases similar to yours. He can help you too. Call or text for your free consultation.